WARWICK, PAUL & WARWICK, A PARTNERSHIP, AND CHARLES H. WARWICK, JR., JOHN A PAUL AND CHARLES H. WARWICK, III, PARTNERS, ASSOCIATED AND IN BUSINESS UNDER THE PARTNERSHIP NAME OF WARWICK, PAUL & WARWICK, APPELLANTS,
v.
JOHN C. DOTTER, APPELLEE

Fla. 4th DCA | 1966-09-28
No. 184
ANDREWS, Acting C. J., and WALDEN, J., concur.
190 So. 2d 596 Florida District Court of Appeal, Fourth District (1966) Caution
Cited by 9 cases

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Synopsis

A law firm appeals from a malpractice judgment after failing to appear at a client's divorce trial, resulting in an adverse judgment. The appellants challenge the use of expert testimony and hypothetical questions to establish damages, but the court affirms the judgment for failing to show reversible error.


Holding

The court affirmed the judgment, holding that the expert testimony was properly admitted and that the firm could not rely on the absence of a trial transcript to escape liability for its own negligence. The trial court properly granted a directed verdict on liability and submitted damages to the jury.


Key Quotes

“To allow the appellants, who did not attend the final hearing and who did not arrange for the reporting of same, to prevail in their contention — that the wife's attorney could not testify as to what transpired there because the divorce proceedings were not reported' — would permit them to take advantage of their own negligence.”

Establishes that a negligent party cannot escape liability by relying on procedural defects it created

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Facts & Procedural History

In April 1961, John C. Dotter hired attorney C.H. Warwick, Sr. of the firm Warwick, Paul & Warwick to defend his wife's divorce action. The firm filed…

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Opinion of the Court
RAWLS, JOHN S., Associate Judge.

RAWLS, JOHN S., Associate Judge.

The law firm Warwick, Paul & Warwick appeals from an adverse judgment in a malpractice suit.

In April, 1961, John C. Dotter’s wife sued for divorce and sought custody of the parties’ children, temporary and permanent alimony, child support, and division of the parties’ property. Dotter engaged Mr. C. H. Warwick, Sr., of the law firm Warwick, Paul & Warwick to defend the action. Warwick filed an answer for Dotter but failed to appear and defend at the trial of the cause. In the final divorce decree Mrs. Dotter was awarded a divorce, custody of the children, periodic alimony, child support and title to the parties’ home in fee simple as her special equity in the property of the parties. Thereafter, Dotter brought this action against the firm Warwick, Paul & *597Warwick alleging malpractice in that it negligently failed to perform those services for which it was retained. Both parties admitted that Warwick, Paul & Warwick had been employed, accepted employment as attorneys for John C. Dotter in the divorce action, and received notice of the trial, but no member thereof attended.

The principal grievances of the appellants go to the use of a hypothetical question to prove the possibility that a more financially favorable divorce decree could have been obtained had not the firm been negligent, and to the assumption in the hypothetical that the husband could have proven certain facts by a preponderance of the evidence. Appellants’ other points are directed toward the propriety of allowing the wife’s attorney in the divorce case to testify as to the substantive and procedural Florida law and as to what testimony was elicited in the divorce case since there was no transcript made of the trial.

Plaintiff Dotter, a watch repairman or jeweler, was engaged in a seasonal business which required that he spend his winters in Florida and his summers in New Jersey. During the summer and fall of 1961 he was in New Jersey, and he was not notified of the date of trial, nor did his attorney attend the trial; and as a result his wife secured a divorce and received custody of his four children which she promptly moved to California. He testified that his attorney, Mr. Warwick, Sr., had laughed at the grounds alleged in the complaint and had assured him that they could successfully defend against the divorce. Dotter believed that, had his case been presented with his sons and his sister testifying, the outcome would have been different because there was no cruelty as alleged; and if necessary he could have proved that he had marital relations with his wife after the complaint and answer were filed; that his wife had no special equity in the property of the parties because she only worked in his business less than 2 of the 20 years the parties were married; that the evidence introduced at the trial of the divorce case was falsified and magnified as to his income and net worth in that his income was actually $75 per week as shown by his income tax returns rather than $125 per week, his net worth was $58,050 instead of $90,000, and most of this property was held jointly but was acquired by inheritance from his parents rather than through the labors of the parties; and that as a result of defendant’s negligence, he lost his family which had moved to California, certain personal property, his homestead which had been awarded to the wife for services she did not render, and was damaged to the extent that the award of alimony was greater than the wife would have received if accurate evidence had been introduced.

Plaintiff called as an expert witness Attorney Simpson who had been counsel for Mrs. Dotter in the divorce case. This witness testified that in the divorce case he had attempted to establish income by reconstructing family expenditures and using that as a basis for estimating income. Based upon a hypothetical question- Simpson testified that, assuming Dotter could have established by a preponderance of the evidence his income, net worth, and the source of the property to be that presented by the evidence in this case, he believed a more favorable judgment would have resulted in the divorce case. Specifically he believed that, if the husband could have established his weekly income as averaging $75.00 and could have proved that the majority of the parties’ property was held in their joint names but was acquired by inheritance from Dotter’s parents, then the alimony allowed would have been $15.00 to $19.00 per week less than the amount awarded and the chancellor would have allowed the wife only the use of the home for a designated period of time rather than full ownership.-

The law firm defended on the grounds that Mr. Warwick, Sr., was approximately 71 years of age, and was very ill when he returned from his vacation a few days prior to the trial of the divorce case and on the grounds that it was the recollection of Mr. Warwick, III, that Mr. Dotter did not want *598to contest the divorce. The elder Mr. Warwick did not testify, but his son stated that, although he had been advised about the marital relations engaged in after the filing of the answer, he did not think Mr. Dotter wanted that information used. There was no positive testimony that Mr. Warwick, III, ever participated actively in the case or even attended a client-attorney conference at any time prior to the divorce trial. However, firm partner, Mr. Paul, had told Mr. Simpson that one reason the firm was not represented at certain hearings in the Dotter divorce case was because the elder Mr. Warwick, who was handling the case, was not physically able to practice law.

At the close of the case the trial judge granted a directed verdict for the plaintiff on the question of liability and submitted the case to the jury on the question of damages. The jury returned a verdict in the sum of $12,000.

It is not necessary to detail all the evidence submitted in this case. It is sufficient to note here that Dotter’s detailed testimony as to each item of the parties’ property, its financial origin and present value, if and when it had been appraised and by whom, etc., was sufficient evidence for the jury to base its conclusion that he could have proved by a preponderance of the evidence with income tax returns, testimony of appraisers and his sister, etc., that his wife magnified his income and net worth and even listed nonexistent assets. We find no error as to the qualifications of this expert, the contents of the hypothetical question, or other testimony elicited from him. Since this expert was the wife’s attorney and attended the divorce trial, he was, with the exception of the chancellor, the most informed available person as to the facts and law involved in the divorce case. To allow the appellants, who did not attend the final hearing and who did not arrange for the reporting of same, to prevail in their contention — that the wife’s attorney could not testify as to what transpired there because the divorce proceedings were not reported' — would permit them to take advantage of their own negligence.

After careful review of the full record we find that the appellants have failed to make a clear showing that reversible error exists. Green v. Loudermilk, Fla.App.1962, 146 So.2d 601. In view of our affirmance of the trial court, we find appellee’s cross assignments of error are without merit.

Affirmed.

ANDREWS, Acting C. J., and WALDEN, J., concur.


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Citator

Cited By

  • Irwin J. Weiner and Mark R. Rubin v. Nelia Moreno, 271 So. 2d 217 (Fla. 3d DCA 1973)
    …nd was the proximate cause of loss to the client.” While Florida courts have not adopted the specific language of the Price rule, the substance of that rule is evident in various Florida cases. See Warwick, Paul and Warwick v. Dotter, Fla.App.1966, 190 So. 2d 596; Suritz v. Kelner, Fla.App.1963, 155 So. 2d 831; Suritz v. Kelner, Fla.App. 1961, 134 So. 2d 259. In view of the Florida decisions reported which move toward the acceptance of Price, this court now affirmatively adopts Price and applies the rule quo…
  • Norval M. GUY v. Kight, 431 So. 2d 653 (Fla. 5th DCA 1983)
    …mate issue to be decided by the trier of fact.” Additionally, it has been held that there is no error in permitting an attorney to testify as an expert witness at trial as to substantive and procedural Florida law. Warwick, Paul & Warwick v. Dotter, 190 So. 2d 596 (Fla. 4th DCA 1966). Even without the appellee’s experts’ testimony, there was ample evidence to support the jury’s finding that there was no settlement between the parties, which would render the admission of the experts’ testimony harmless error.…
  • In re Est. OF C.J. Lenahan v. Lenahan, 511 So. 2d 365 (Fla. 1st DCA 1987)
    …situation); Red Carpet Corp. of Panama City Beach v. Calvert Fire Insurance Co., 393 So. 2d 1160 (Fla. 1st DCA 1981) (expert testimony permitted regarding the meaning of certain terms in insurance policy); War [*371] wick, Paul & Warwick v. Dotter, 190 So. 2d 596 (Fla. 4th DCA 1966) (no error in permitting an attorney to testify as an expert witness at trial as to substantive and procedural Florida law); and Bauman v. Centex Corp., 611 F. 2d 1115 (5th Cir.1980) (expert permitted to testify that a defendant i…

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